Context: Ericsson has been enforcing some Brazilian and Colombian preliminary injunctions (PIs) over standard-essential patent (SEP) since late last year (December 24, 2023 ip fray article). At a hearing held last week in Washington, D.C., Lenovo urged the United States Court of Appeals for the Federal Circuit to reverse a district court’s denial of an antisuit injunction (August 7, 2024 ip fray article).
What’s new: Ericsson’s U.S. counsel has filed a notice with the Federal Circuit to share a copy and a translation of a Brazilian appeals court decision upholding one of Ericsson’s PIs after a full appellate hearing. Ericsson’s court filing notes that “Lenovo has been heard at least three times [emphasis in original] by Brazilian courts on its theory that Ericsson breached FRAND obligations and, as a result, cannot obtain injunctive relief in Brazil.” Never once did a Brazilian court agree.
Direct impact: Based on how last week’s U.S. appellate hearing went, it’s difficult to predict the outcome, but what can be said with certainty is that the affirmance of that Brazilian PI further underpins Ericsson’s argument that Lenovo simply wants the U.S. judiciary to interfere with a foreign jurisdiction that follows due process and faithfully applies its laws. Psychologically, the Federal Circuit may feel some more “solidarity” with one of its counterparts: an appeals court, albeit in a foreign country.
Wider ramifications: Ericsson’s counsel could already have given the Federal Circuit notice of other recent developments, particularly the Unified Patent Court’s (UPC) denial of a motion to amend a complaint to the effect of Lenovo seeking a multi-European-country SEP injunction against Ericsson (August 6, 2024 ip fray article) and the outright dismissal on jurisdictional grounds of a UK SEP injunction bid (May 23, 2024 ip fray article).
The Brazilian appellate hearing took place near-simultaneously with the Federal Circuit’s antisuit hearing, but the decision issued after that one. The judgment is still confidential, which is why the public redacted version of Ericsson’s U.S. court filing does not contain the exhibits (original Brazilian ruling and English translation). Here’s Ericsson’s filing:
At least one Federal Circuit judge appeared to understand that U.S. courts might just have to defer to their Brazilian and Colombian counterparts, given that those jurisdictions are more injunction-oriented.
It was not stressed at the hearing, but was stated very clearly in Ericsson’s responsive brief on appeal, that what Lenovo is trying to achieve through its U.S. antisuit injunction motion is not to protect U.S. jurisdiction, but to neutralize Ericsson’s Latin American injunctions for the purpose of having the terms of a license agreement set by a UK court. This is a triangular or pool billiard-like strategy, and the question is whether the U.S. courts allow themselves to be used as a shield against Latin American injunctions and as a sword to make the UK the worldwide FRAND rate-setter in this dispute.
It’s never an easy decision for a party whether to submit a request for judicial notice after briefing is complete, and much less between a hearing and the decision. Ericsson’s lawyers in this case have decided to err on the shy side. Maybe they thought that it would cost goodwill with the court to make additional filings when something happened somewhere. Maybe they thought it would look as if they needed to show anything more to win, though they may actually have been confident that Lenovo wasn’t going to get a U.S. antisuit injunction that would raise serious international comity issues and probably trigger some retaliation by other jurisdictions. Whatever their reasons may have been not to inform the Federal Circuit of the UK and UPC decisions, they’ve come down on the “let’s file” side with respect to the affirmance of that Brazilian SEP PI.